Armand Cerrone, Inc. v. Sicoli & Massaro, Inc.

—Order insofar as appealed from unanimously reversed on the law without costs and motion denied. Memorandum: Factual issues exist regarding the terms and conditions of the alleged oral agreement between the parties for the removal of rock at the construction project. Although defendant stated in its answer that an agreement existed, that statement does not constitute an admission that the parties agreed to the specific terms alleged by plaintiff in its complaint. To the contrary, defendant’s statement is consistent with affidavits and other evidentiary materials submitted by defendant setting forth a conflicting version of the terms and conditions of that agreement. Under the circumstances, Supreme Court erred in granting plaintiff’s motion for partial summary judgment on its fourth cause of action. (Appeal from Order of Supreme Court, Niagara County, Rath, Jr., J. — Summary Judgment.) Present — Den-man, P. J., Green, Balio, Fallon and Boehm, JJ.